Citation: Kennedy v R [2013] NSWCCA 19
Court: Court of Criminal Appeal, NSW
Date: 13 February 2013
Judges: Simpson J, Fullerton J, Davies J
Background
The appellant pleaded guilty in the District Court to entering a dwelling with intent to commit a serious indictable offence (in company) and robbery in company, along with a further offence of stalking/intimidating another person. The offences arose from a single violent incident in which the appellant and his co-offender, Kirby, entered a unit and terrorised two occupants with a knife and scissors, demanding and taking money while making repeated threats to kill. The victims were subjected to prolonged, frightening conduct including weapons being thrust at their chests and throats.
The appellant was sentenced in June 2012 by Judge Nicholson SC in the District Court. The co-offender Kirby had been sentenced separately but concurrently, arriving at a total starting point of four years before discount. The appellant received a sentence based on the same four-year starting point, producing a non-parole period of 20 months on the lead count. He sought leave to appeal on the basis that his sentence was excessive, principally relying on the parity principle.
The Court of Criminal Appeal granted leave and heard the appeal. All three judges joined in orders made on 11 December 2012, with Davies J providing the reasons.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the offending, particularly regarding the form of aggravation involved
- Whether the sentencing judge failed to give adequate weight to the appellant's significant subjective circumstances, including his low intellectual functioning, mental health difficulties, and early guilty plea
- Whether the parity principle required a different sentence for the appellant compared to his co-offender Kirby, given the differences in their criminal histories and Kirby's status on conditional liberty at the time of the offences
Decision
Davies J identified three errors in the sentence imposed by the District Court. The judgment does not detail all three errors exhaustively in the portions available, but the parity ground was central to the appeal and plainly made out.
On the parity issue, the Court found that Kirby's significantly more serious criminal history and the fact that Kirby was on conditional liberty at the time of the offences justified a different, higher starting point for Kirby than for the appellant. The sentencing judge had used the same four-year starting point for both offenders, which failed to reflect these material distinctions. Applying the principle from Postiglione v R, the Court confirmed that different criminal histories and custodial circumstances can justify a real difference in the time co-offenders serve.
Davies J assessed the appropriate starting point for the appellant at three years and eight months, compared to the four years used for Kirby. After applying the 25 per cent discount for the early guilty plea and maintaining the sentencing judge's 55 per cent ratio between the non-parole period and head sentence, the Court arrived at a non-parole period of 18 months with an additional term of 15 months on the lead count.
The Court also quashed the condition requiring the appellant to reside in full-time rehabilitation. The sentences on Count 2 and the section 166 certificate offence were left undisturbed. The Crown's submission that no lesser sentence was warranted (on the basis that the co-offender's sentence was itself too lenient) was rejected: the sentence imposed on Kirby was not so lenient or inadequate as to make it inappropriate to exercise discretion in the appellant's favour.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Original sentence quashed
- Count 1 (enter dwelling with intent): non-parole period of 18 months commencing 26 May 2011, expiring 25 November 2012; additional term of 15 months expiring 25 February 2014
- Count 2 (robbery in company): fixed term of 12 months commencing 26 May 2011, expiring 25 May 2012
- Section 166 certificate offence: fixed term of 15 months commencing 26 May 2011, expiring 25 August 2012
- Appellant directed to be released on parole immediately on Count 1, subject to supervision by the Probation and Parole Service for not less than nine months
- Condition requiring residence at a full-time rehabilitation centre quashed
Key Takeaways
- The parity principle does not require identical sentences for co-offenders: where one offender has a significantly more serious criminal history or was on conditional liberty at the time of the offending, those factors can justify a meaningfully different starting point.
- Applying Postiglione v R and Green v The Queen, the Court of Criminal Appeal confirmed that like must be compared with like when applying parity, and that differences in criminal history or custodial status may have no counterpart in a co-accused's case.
- A Crown submission that no lesser sentence is warranted will not automatically succeed simply because a co-offender's sentence may have been lenient; the co-offender's sentence must be so inadequate that exercising discretion in the appellant's favour would be inappropriate.
- Where multiple errors are established in a sentence, the appellate court will re-sentence unless satisfied that no lesser sentence is warranted, taking into account all relevant objective and subjective factors.
- Subjective circumstances, including low intellectual functioning (here, an IQ in the lower extreme range), mental health difficulties, and genuine remorse, remain relevant considerations at the re-sentencing stage.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Postiglione v R (1997) 189 CLR 295
- Veen v The Queen (No. 2) (1987) 164 CLR 465